ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John P. Wilson Karen Freeman-Wilson
Greenwood, Indiana Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
J.L. SPIVEY, JR., )
Defendant-Appellant, )
)
v. ) 41S00-0002-CR-76
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE JOHNSON SUPERIOR COURT
The Honorable James K. Coachys, Judge
Cause No. 41D01-9707-CF-98
________________________________________________
On Direct Appeal
January 29, 2002
DICKSON, Justice
A jury found the defendant, J.L. Spivey, guilty of murder (felony
murder),[1] burglary as a class A felony,[2] and conspiracy to commit
burglary[3] in connection with the death of John Hughes in Greenwood,
Indiana, in June of 1997. Finding that Count II, charging burglary "must
be merged" into Count I, charging felony murder, the trial court only
imposed sentences for the defendant's convictions for murder and conspiracy
to commit burglary. Record at 310, 326. This direct appeal presents two
claims: 1) that the defendant's convictions violate the Double Jeopardy
Clause of the Indiana Constitution and 2) that the trial court erred in
limiting cross-examination. We affirm his convictions.
Indiana Double Jeopardy Clause
The defendant's first contention is that his convictions and sentences
for murder and conspiracy to commit burglary violate the Indiana Double
Jeopardy Clause, Article 1, Section 14 of the Indiana Constitution, as
explicated in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). The
defendant claims that under the actual evidence test he may not be properly
convicted of felony murder and conspiracy to commit a felony when the two
offenses share an element. In this case the underlying felony for felony
murder was burglary, and the overt act in the conspiracy referred to
elements of the same burglary. The defendant argues that, applying the
Richardson actual evidence test, the Indiana Double Jeopardy Clause is
violated because the jury used the evidence of breaking and entering with
intent to commit theft to prove common elements of both conspiracy to
commit burglary and felony murder.
In Richardson, we reviewed the history of the Indiana Constitution's
Double Jeopardy Clause to ascertain and articulate a single comprehensive
rule synthesizing and superseding previous formulations and exceptions. We
explained that two offenses are the "same offense" in violation of the
Indiana Double Jeopardy Clause if, "with respect to either the statutory
elements of the challenged crimes or the actual evidence used to convict,
the essential elements of one challenged offense also establish the
essential elements of another challenged offense." Id. at 49. In the
present case the defendant claims a violation of the Indiana Double
Jeopardy Clause not under the statutory elements test but under the actual
evidence test. To show that two challenged offenses constitute the same
offense under the actual evidence test, "a defendant must demonstrate a
reasonable possibility that the evidentiary facts used by the fact-finder
to establish the essential elements of one offense may also have been used
to establish the essential elements of a second challenged offense." Id.
at 53.
Application of the actual evidence test requires the reviewing court
to identify the essential elements of each of the challenged crimes and to
evaluate the evidence from the jury's perspective, considering where
relevant the jury instructions, argument of counsel, and other factors that
may have guided the jury's determination. Richardson, 717 N.E.2d at 54
n.48; see, e.g., Burnett v. State, 736 N.E.2d 259, 262-63 (Ind. 2000). The
Richardson actual evidence test was carefully and deliberately crafted to
provide a general formulation for the resolution of all actual evidence
test claims. The language expressing the actual evidence test explicitly
requires evaluation of whether the evidentiary facts used to establish the
essential elements of one offense may also have been used to establish the
essential elements of a second challenged offense. The test is not merely
whether the evidentiary facts used to establish one of the essential
elements of one offense may also have been used to establish one of the
essential elements of a second challenged offense. In other words, under
the Richardson actual evidence test, the Indiana Double Jeopardy Clause is
not violated when the evidentiary facts establishing the essential elements
of one offense also establish only one or even several, but not all, of the
essential elements of a second offense. Application of this principle has
been articulated in different ways. Compare Richardson, 717 N.E.2d at 54
("the defendant has demonstrated a reasonable possibility that the
evidentiary facts used by the jury to establish the essential elements of
robbery were also used to establish the essential elements of the class A
misdemeanor battery"), with Chapman v. State, 719 N.E.2d 1232, 1234 (Ind.
1999)("the same evidence used by the jury to establish the essential
elements of murder was also included among the evidence establishing the
essential elements of robbery as a Class A felony").[4]
Although denying any connection with the death of Hughes, the
defendant at trial admitted conspiracy to commit burglary and commission of
the burglary. Record at 1124-25, 1411. The jury was instructed that to
find the defendant guilty of the murder charge, the evidence must prove
that the defendant or his accomplice killed Hughes while committing or
attempting to commit burglary, which was defined as the breaking and
entering of a building of another person with the intent to commit a felony
therein. Record at 216-17 (Court's Final Instructions 10 & 11). As to the
charge of conspiracy to commit burglary, the jury instructions permitted
the jury to understand that the overt act element could be either the
completed burglary or only the breaking and entering, but the killing of
Hughes was not identified as a possible overt act.[5] The evidentiary
facts proving the essential elements of felony murder established that
Hughes was killed in the course of the defendant's commission of burglary.
Although these same facts thus established the essential elements of
burglary, they did not also prove the agreement element of conspiracy.
Similarly, the evidentiary facts used by the jury to establish that the
defendant committed conspiracy to commit burglary, although including proof
of breaking and entering and intent to commit a felony, did not also
establish that Hughes was killed during the burglary. Thus, although the
evidence proving each offense also proved some elements of a second
offense, in neither case did the same evidentiary facts establish all of
the essential elements of both offenses. In other words, the offenses of
felony-murder and conspiracy were each established by the proof of a fact
not used to establish the other offense.[6] The defendant has thus failed
to demonstrate a violation of the Indiana Double Jeopardy Clause under the
Richardson actual evidence test.
As we hold today in Pierce v. State, No. 49S00-0011-CR-710, ---
N.E.2d --- (Ind. 2001), this Court continues to recognize a series of rules
of statutory construction and common law that are separate and in addition
to the protections afforded by the Indiana Double Jeopardy Clause.
However, the defendant's convictions for felony-murder and conspiracy to
commit burglary do not qualify for relief under these rules.
Justice Sullivan has urged that an offender should not be punished
for the crime of conspiracy where the overt act element of conspiracy "is
the very same act as another crime for which the defendant has been
convicted and punished." Richardson, 717 N.E.2d at 56 (Sullivan, J.,
concurring). He explains that this rule is required to assure that "the
conspiracy is a separate and distinct act from the underlying crime." Id.
Here, the conspiracy to commit burglary is sufficiently distinct from the
offense of felony-murder. As an overt act of the conspiracy, the burglary
was completed when the defendant entered the residence of John Hughes with
the intent to commit theft. The defendant was not convicted and sentenced
for burglary because the trial court merged the burglary count into the
murder count. The defendant's crime of murder, however, required not only
the burglary but also the death of Hughes, which is not part of the overt
act for the conspiracy to commit burglary. Thus the overt act was not the
same as the crime of murder, and the offenses of conspiracy and murder are
sufficiently distinct to permit the defendant to be separately convicted
and punished for each.
We find no error under the Indiana Double Jeopardy Clause or under
any rules of statutory construction and common law.
Limitation on Cross-Examination
The defendant's second contention is that the trial court abused its
discretion in limiting the scope of cross-examination of two witnesses.
The defendant asserts, "[T]he events which resulted in the death of John
Hughes had occurred subsequent to the burglary and after the Defendant,
Spivey[,] had left the scene." Br. of Appellant-Defendant at 28. He
claimed at trial that the death was caused by a subsequent beating of
Hughes inflicted by Jason Singleton, a relative of Carla Summers. The
defendant argues that "[b]y its cross-examination of Carla Summers and
[Jason] Singleton, the defense was trying to show that the motive for the
intentional homicide was to cover up the involvement of Singleton in this
crime and possibly to protect Carla Summers." Id. (emphasis in original).
The victim was John Hughes, an elderly man of 83 or 84 who lived alone
in a mobile home. Carla Summers helped Hughes on a daily basis with basic
everyday tasks. She cleaned, ran errands, took him to the doctor's office,
and helped him in other similar ways. Singleton was a co-perpetrator in
the charged crimes and a relative of Summers by marriage. It was through
Summers that Singleton met the victim and became aware that there may be
money kept in lockboxes in his kitchen. The defendant and Singleton went
to the mobile home to steal the lockboxes. The defendant broke in through
the locked door. At this point, the testimony of Singleton and the
defendant diverges. Singleton stated that he watched the defendant go into
the trailer and after a few moments, stepped inside to observe the
defendant hitting the victim in the face with his fists. Singleton then
left, and the defendant followed later with the boxes. On the other hand,
the defendant testified that both he and Singleton went in the mobile home
and, as they were carrying the boxes out, the victim awoke and stood up out
of his chair. The defendant stated that he pushed or hit the victim back
into his chair and then Singleton hit him in the chest with one of the
lockboxes. The defendant stated that he left the home without Singleton
and expressed his belief that Singleton intentionally killed Hughes after
the defendant was no longer present. The next day, Summers discovered
Hughes in his home, covered with blood and unable to speak. Paramedics
transported him to the hospital, where he died five days later. The cause
of death was blunt force injury to the head resulting in multiple head
injuries.
Before trial, the court had granted the State's motion in limine
seeking, among other things, to preclude evidence regarding prior charged
and uncharged acts of Jason Singleton and Carla Summers that did not result
in a conviction admissible under Ashton v. Anderson, 258 Ind. 51, 279
N.E.2d 210 (1972). This ruling was consistent with Indiana Evidence Rules
608(b) and 609(a) which generally prohibit a challenge to witness
credibility by evidence of specific instances of conduct except for
convictions of specific crimes or crimes involving dishonesty or false
statement. At trial, the defendant properly presented offers to prove in
support of his request for relief from the ruling.
The defendant sought to introduce evidence of dismissed charges that
had been brought against Summers for a prior theft involving the victim.
The defendant was also prevented from introducing evidence of an incident
in which Singleton distracted the victim while Summers may have taken some
money from the victim. The defendant contends that this evidence would
have bolstered his theory that Singleton intentionally killed the victim to
cover up his involvement in the current burglary and past thefts by
Summers.
Even if the defendant were correct in this contention, the excluded
evidence would not diminish the defendant's guilt under the charge of
felony murder. The defendant's joint participation with Singleton in the
class A felony burglary of Hughes renders the defendant guilty of murder
for any killing while committing the burglary. See Wieland v. State, 736
N.E.2d 1198, 1202-03 (Ind. 2000)(conviction for felony murder upheld for
killing by accomplice during flight from robbery); Palmer v. State, 704
N.E.2d 124, 126 (Ind. 1999)(felony conviction upheld for killing of
accomplice by law enforcement); Seeley v. State, 544 N.E.2d 153, 156-57
(Ind. 1989)(conviction for felony murder of victim intentionally killed by
accomplice during escape); Mauricio v. State, 476 N.E.2d 88, 92 (Ind.
1985)(conviction for felony murder where accomplice killed victim after
defendant had already left scene on a snowmobile stolen from victim). But
cf. Kelly v. State, 719 N.E.2d 391, 396 (Ind. 1999)(upholding trial
court’s judgment on the evidence notwithstanding a jury verdict finding a
defendant guilty of murder where sole evidence established that the killing
was spontaneous after the defendant had left the scene).
If we were to disregard Evidence Rules 608 and 609, and hypothetically
assume that the trial court improperly limited the defendant's cross-
examination of Summers and Singleton, reversal would still not be
warranted. Convictions will not be reversed "if the State can demonstrate
'beyond a reasonable doubt that the error complained of did not contribute
to the verdict obtained.'" Standifer v. State, 718 N.E.2d 1107, 1110 (Ind.
1999)(citing Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431,
1438, 89 L.Ed.2d 674, 686 (1986), and quoting Chapman v. California, 386
U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710 (1967)). The jury was
instructed:
In proving felony murder, the State need show only that defendant
intended to
commit the underlying felony, not the intent to commit murder. A
defendant may
be convicted of felony murder even though it was his accomplice who
killed the
victim.
Record at 217 (Court's Final Instruction 11). Even viewing the evidence
favorable to the defendant, it established that he participated in the
burglary and that in the course of the burglary both the defendant and his
accomplice struck the elderly victim who died as a result. In light of the
information before the jury, the additional evidence of motive for
Singleton is of little consequence. We conclude that the trial court did
not err in limiting cross-examination, but even if it did, such error would
be harmless beyond a reasonable doubt.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and BOEHM, J., concur.
RUCKER, J., concurs in part and dissents in part with separate
opinion, in which SULLIVAN, J., joins.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN P. WILSON KAREN M. FREEMAN-WILSON
Greenwood, Indiana Attorney General of Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
J. L. SPIVEY, JR., )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 41S00-0002-CR-76
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE JOHNSON SUPERIOR COURT
The Honorable James K. Coachys, Judge
Cause No. 41D01-9707-CF-98
ON DIRECT APPEAL
January 29, 2002
RUCKER, Justice, concurring in part and dissenting in part
I agree with the majority that Spivey’s convictions for felony murder
and conspiracy to commit burglary do not violate Indiana’s Double Jeopardy
Clause as articulated in Richardson v. State, 717 N.E.2d 32 (Ind. 1999).
However, Indiana common law dictates that Spivey’s conviction for
conspiracy to commit burglary should be vacated.
In a unanimous opinion, we hold today that this Court has “long
adhered to a series of rules of statutory construction and common law that
are often described as double jeopardy, but are not governed by the
constitutional test set forth in Richardson.” Pierce v. State, __ N.E.2d
__, No. 49S00-0011-CR-710 (Ind. Jan. 29, 2002). It is true there is case
authority standing for the proposition that a defendant may be convicted of
both conspiracy to commit a felony and the underlying felony. See, e.g.,
Griffin v. State, 717 N.E.2d 73, 89 (Ind. 1999) (robbery and conspiracy to
commit robbery), cert. denied, 530 U.S. 1247 (2000); Witte v. State, 550
N.E.2d 68, 71 (Ind. 1990) (murder and conspiracy to commit murder); Sparks
v. State, 537 N.E.2d 1179, 1184 (Ind. 1989) (burglary and conspiracy to
commit burglary). However, consistent with today’s holding in Pierce, this
Court has not allowed to stand a conviction for conspiracy where the overt
act that constitutes an element of the conspiracy is the same act as
another crime for which the defendant has already been convicted. See,
e.g., Morgan v. State, 675 N.E.2d 1067, 1072 (Ind. 1996) (agreeing that the
defendant’s convictions for both conspiracy to deal in cocaine and dealing
in cocaine violated principles of double jeopardy because “the overt act in
furtherance of the conspiracy could have been the same act as required to
convict [the defendant] for dealing in cocaine.”); Buie v. State, 633
N.E.2d 250, 261 (Ind. 1994)[7] (holding that where the overt act element of
a conspiracy charge is the underlying offense, convictions on both the
conspiracy and underlying offense cannot stand); Thompson v. State, 259
Ind. 587, 290 N.E.2d 724, 727 (1972) (holding “that before the court may
enter judgment and impose sentence upon multiple counts, the facts giving
rise to the various offenses must be independently supportable, separate
and distinct.”).
In this case Spivey was charged with burglary, felony murder—with
burglary alleged as the underlying felony, and conspiracy to commit
burglary. The evidence shows and the State concedes that the only overt
act supporting the conspiracy charge was the burglary itself. Although the
trial court entered no sentence on the burglary conviction, that was not
sufficient in my view. Left standing was the conspiracy charge, the overt
act for which Spivey has already been punished by reason of the felony
murder conviction. If not under the Richardson double jeopardy test,[8]
then under this Court’s traditional common law scheme, the convictions for
both felony murder and conspiracy cannot stand. I would therefore vacate
Spivey’s conviction for conspiracy to commit burglary. In all other
respects I concur with the majority.
SULLIVAN, J., concurs.
-----------------------
[1] Ind.Code § 35-42-1-1(2).
[2] Ind.Code § 35-43-2-1.
[3] Ind.Code § 35-41-5-2; Ind.Code § 35-43-2-1.
[4] See also Lowrimore v. State, 728 N.E.2d 860, 868-69 (Ind.
2000)("[T]he jury used the same evidentiary facts . . . to prove both the
murder charge and the criminal confinement charge."); Wise v. State, 719
N.E.2d 1192, 1201 (Ind. 1999)("[T]he same evidence used by the jury to
establish the essential elements of murder was also included among the
evidence establishing the essential elements of arson as a Class A felony,
and the two cannot stand."); Hampton v. State, 719 N.E.2d 803, 809 (Ind.
1999)("The same evidence that supported the murder conviction, the act of
stabbing, may have also been used to convict Defendant of robbery as a
Class A felony.").
[5] The final instructions advised the jury of the content of the
charging informations for all counts, including the charging information on
the conspiracy count which, as to the overt act element, alleged "and in
furtherance of said agreement J.L. Spivey did break and enter the dwelling
of John W. Hughes with the intent to commit a felony, to-wit: theft."
Record at 210 (Court's Final Instruction 4). In setting out the elements
and burden of proof as to the conspiracy count, the court instructed the
jury that, to convict the defendant under Count III, charging conspiracy to
commit burglary, the State must have proved the following elements: that
the defendant agreed with Jason Singleton to commit the crime of burglary,
with the intent to commit the crime, and that the defendant or Singleton
"performed an overt act in furtherance of the agreement by breaking and
entering the home of John Hughes . . . ." Record at 221 (Court's
Instruction 16).
[6] If there had been any possibility that the jury used the same
evidentiary facts that established one offense to completely establish the
other offense, the actual evidence test would then require us to determine
whether this possibility was reasonable. If the possibility were only
speculative or remote, there would be no violation of the Double Jeopardy
Clause under the actual evidence test. Griffin v. State, 717 N.E.2d 73, 89
(Ind. 1999).
[7] Although Buie was explicitly said to be superceded in Richardson,
717 N.E.2d at 49 n.36, only Justice Dickson and Chief Justice Shepard
appear to have taken that view. Justice Sullivan concurred in Richardson
but authored a separate opinion that cited Buie apparently with approval.
Id. at 57 (Sullivan, J., concurring). The other two Justices did not
comment on Buie but cited with approval other cases following additional
common law doctrines.
[8] Compare, for example, Lundberg v. State, 728 N.E.2d 852, 855
(Ind. 2000) (applying Richardson and reversing the defendant’s conviction
for conspiracy to commit murder where it was “reasonably possible” that
the evidence the jury relied on for murder—the defendant shot the
victim—was the same evidence the jury relied upon to establish the overt
act of the conspiracy).